Staying out of Judges Jail: New Code of Judicial Conduct provisions that may be of assistance

Last Friday's article about a judge getting reassigned to Judges Jail, apparently on account of 'liking' someone else's Tweet, prompted a lot of attention and also some concern, among other judges, as to how and why the judge's online actions, whatever they were, may have potentially violated the Code of Judicial Conduct.

Although I have asked for more information from the Chief Judge's Office about the precise conduct that triggered the Executive Committee's action, I haven't received anything new. So I can not talk about that particular case at this time.

But I could, and did, reach out to an actual expert to follow up on the question of how judges generally can avoid getting into similar difficulties in future.

Jim Grogan is the former Chief Counsel of ARDC; he continues to teach ethics and professional responsibility at Loyola University Chicago Law School and, as most FWIW readers probably know, he remains a much-in-demand speaker on legal and judicial ethics at CLE presentations around the country.

While he's very entertaining in person, Grogan's rapid-fire delivery and seemingly inexhaustible fund of relevant anecdotes loses something when reduced to writing... especially when I'm doing the reducing. In our recent conversation, Grogan did try to speak more slowly and use smaller words so that I could follow along (we went to law school together, so he has long known how necessary this is), but what follows are more like slides for a Grogan presentation, with Ben Stein serving as a last-minute fill-in (Bueller? Bueller? Bueller?).

(And, yes, large swaths of text are excised from the following, and the deletions are not always specifically indicated. This is meant to get you to the most relevant language without getting bogged down along the way. Some things you really should be able to figure out from context....)

2023 ILLINOIS CODE OF JUDICIAL CONDUCT

Relevant Provisions Dealing with Social Media

Preamble & Scope

(4) The Code governs a judge's personal and judicial activities conducted in person, on paper, and by telephone or other electronic means. A violation of the Code may occur when a judge uses the Internet, including social networking sites, to post comments or other materials such as links to websites, articles, or comments authored by others, photographs, cartoons, jokes, or any other words or images that convey information or opinion. Violations may occur even if a judge's distribution of a communication is restricted to family and friends and is not accessible to the public. Judges must carefully monitor their social media accounts to ensure that no communication can be reasonably interpreted as suggesting a bias or prejudice; an ex parte communication; the misuse of judicial power or prestige; a violation of restrictions on charitable, financial, or political activities; a comment on a pending or impending case; a basis for disqualification; or an absence of judicial independence, impartiality, integrity, or competence.

*  *  *

RULE 1.3: AVOIDING MISUSE OF THE PRESTIGE OF JUDICIAL OFFICE

A judge shall not misuse the prestige of judicial office to advance the personal or economic interests* of the judge or others or allow others to do so.

COMMENTS

[1] It is improper to use or attempt to use the judge's position to gain personal advantage or deferential treatment of any kind. For example, it would be improper to allude to judicial status to gain favorable treatment in encounters with traffic officials. Similarly, a judge must not use the judicial title in letterhead, e-mails, or any other form of communication, including social media or social networking platforms, to gain an advantage in conducting personal business.

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RULE 2.1: GIVING PRECEDENCE TO THE DUTIES OF JUDICIAL OFFICE

The duties of judicial office, as prescribed by law*, shall take precedence over all of a judge's personal and extrajudicial activities.

COMMENTS

[1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities, including their use of social media or participation on social networking platforms, to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3.

*  *  *

RULE 2.8: DECORUM, DEMEANOR, AND COMMUNICATION WITH JURORS

COMMENTS

[2] Commending or criticizing jurors for their verdict, including on social media or social networking platforms, may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case.

*  *  *

RULE 2.9: EX PARTE COMMUNICATIONS

COMMENTS

[3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, or other persons who are not participants in the proceeding and communications made or posted on social media or social networking platforms. A judge must make reasonable efforts to ensure that law clerks, court staff, court officials, and others under the judge's direction and control do not violate this Rule.

*  *  *

RULE 2.10: JUDICIAL STATEMENTS ON PENDING AND IMPENDING CASES

(A) A judge shall not make any public statement about a matter pending* or impending* in any court.

(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office. * * *

COMMENTS

[4] Judges who are active on social media or social networking platforms should understand how their comments in these forums might be considered "public" statements implicating this Rule. Judges should be aware of the nature and efficacy of privacy settings offered by social media or social networking platforms.

*  *  *

RULE 2.11: DISQUALIFICATION

COMMENTS

[7] A judge's use of social media or social networking platforms may create the appearance of a relationship between the judge and litigants or lawyers who may appear before the judge. Whether a relationship would cause the judge's impartiality to "reasonably be questioned" depends on the facts. While the labels used by the social media or social networking platform (e.g., "friend") are not dispositive of the nature of the relationship, judges should consider the manner in which the rules on disqualification have been applied in traditional contexts and the additional ways in which social media or social networking platforms may amplify any connection to the judge.

*  *  *

RULE 3.1: EXTRAJUDICIAL ACTIVITIES IN GENERAL

COMMENTS

[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge's official or judicial actions, are likely to appear to a reasonable person to call into question the judge's integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their race, sex, gender, gender identity, religion, national origin, ethnicity, pregnancy, disability, age, sexual orientation, or socioeconomic status. For the same reason, a judge's extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6.

*  *  *

RULE 3.7: PARTICIPATION IN EDUCATIONAL, RELIGIOUS, CHARITABLE, FRATERNAL, OR CIVIC ORGANIZATIONS AND ACTIVITIES

COMMENTS

[3A] A judge may not use social media or social networking platforms to promote the activities of educational, religious, charitable, fraternal, or civic organizations when the judge would be prohibited from doing so using another means of communication. For example, just as a judge may not write or telephone nonfamily members or judges over whom the judge has supervisory authority to encourage them to attend organizations' fundraising events, a judge may not promote those events via social media or social networking platforms.

*  *  *

RULE 4.1: POLITICAL AND CAMPAIGN ACTIVITIES IN PUBLIC ELECTIONS

COMMENTs

[2A] Except as may be specifically authorized in the context of judicial election campaigns, Rule 4.1 prohibits judges and judicial candidates from "publicly" endorsing or making "speeches" on behalf of political candidates or organizations. Comments by judges active on social media or social networking platforms may be considered "public" for purposes of this Rule.

*  *  *

Rule 3.1 was the one cited by the Cook County Circuit Court Executive Committee in its recent Order removing Judge Ahern. But, clearly, as Grogan's list demonstrates, there are other provisions that must be considered by a prudent jurist prior to posting anything. Anywhere.

I asked Grogan to summarize. Well, he said, a judge can express an opinion regarding Barbie or Oppenheimer. Pro or con. But a judge needs to refrain from commenting on the news of the day. A candidate for judge, even a sitting judge seeking a different judicial office, has a little more latitude to express opinions than a judge not coming before the voters. But, he said, while a judicial candidate might more freely express some kinds of opinions, because the Supreme Court says he or she has that right, a judicial candidate is nevertheless courting discipline if he or she misrepresents facts, such as, for example, his or her opponent's involvement, or degree of involvement in a particular case.

My mother was not a scholar of legal or judicial ethics. But she might have expressed things this way: If you have to think about whether posting something may run afoul of a rule, maybe you should think again about posting in the first place. Here, certainly, Grogan leads by example: He doesn't have a Facebook account. He doesn't have a Twitter (or 'X') handle. He's undoubtedly happier for it, too.